BVA9504102 
DOCKET NO.  92-24 265     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Entitlement to waiver of recovery of an overpayment of improved
pension benefits in the amount of $16,212.00, to include the
issue of whether the overpayment was properly created.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

K. J. Alibrando, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1945 to November
1946.

This appeal arises from an October 1992 decision of the Regional
Office's Committee on Waivers and Compromises (RO), which denied
the veteran's request for waiver of recovery of an overpayment of
improved pension benefits.  The Board remanded the case in April
1994 for additional development of the evidence.

In June 1993, the veteran's representative raised the issue of
entitlement to service connection for residuals of cigarette
smoking.  This issue was referred back to the RO in the April
1994 remand; however, no action was taken.  As that issue has not
been properly developed on appeal and is not inextricably
intertwined with the issue before the Board, it is once again
referred to the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant asserts, in effect, that the overpayment was
improperly created.  He argues that his spouse's income should
not be included in his countable income and that all he did was
to sign the forms after they were filled out by a VA
representative.  He further asserts that the recovery of the
overpayment should be waived because recovery of the debt would
be against equity and good conscience.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the overpayment was properly created and that the
preponderance of the evidence is against the claim for waiver of
recovery of an overpayment of improved pension benefits in the
amount of $16,212.00.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.

2.  The veteran was awarded improved pension benefits effective
in March 1989 on the basis that the veteran was in receipt of
Social Security benefits and that his spouse had no income as was
reported by him.

3.  In 1989, the veteran's countable income was $3,001 and his
spouse earned $8,821.

4.  The veteran's countable income of $11,822 for the year 1989
exceeded the applicable statutory limit for entitlement to
improved pension benefits effective in March 1989, resulting in
the overpayment in question.

5.  The veteran was solely at fault in the creation of the
overpayment; the VA promptly suspended payment of benefits on
learning of the veteran's increased income.

6.  The veteran is not currently in receipt of VA benefits.

7.  Reliance on VA benefits did not result in relinquishment of a
valuable right or the incurrence of a legal obligation.

8.  Recovery of the debt would not deprive the veteran of the
ability to provide for life's basic necessities; failure to repay
the debt would result in unfair gain to the veteran.

CONCLUSIONS OF LAW

1.  The veteran's countable income exceeded the maximum amount of
income allowable for payment of pension during the period of time
is question; thus, the overpayment was properly created.  38
U.S.C.A. § 1521(1991); 38 C.F.R.§ § 3.3(a)(3), 3.23, 3.271
(1994).

2.  Recovery of an overpayment of compensation benefits in the
amount of $16,212.00 would not be against equity and good
conscience.  38 U.S.C.A. § § 5107, 5302 (West 1991); 38 C.F.R.
§§ 1.963(a), 1.965(a) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a).  That is, he has presented a claim which
is plausible.  All relevant facts have been properly developed,
and no further assistance is required to comply with the duty to
assist as mandated by 38 U.S.C.A. § 5107(a).  The Board notes
that in April 1994, the case was remanded for additional
development of the evidence, including a request that the RO
obtain a current financial status report from the veteran.  By
letter dated in May 1994, the RO sent a Financial Status Report
form to the veteran and requested that he complete and return it.
In June 1994, the veteran returned the blank form and asserted,
in effect, that his wife's income should not be counted in
determining his rate of pension benefits.  He reported his
monthly income and certain monthly expenses.  He has not, to
date, reported his wife's income.  In Wood v. Derwinski, 1
Vet.App. 190 (1991), the United States Court of Veteran's Appeals
stated that the duty to assist is not always a one-way street,
and if a claimant wishes help, he cannot passively wait for it in
those circumstances where he may or should have information that
is essential in obtaining putative evidence.  In this case, as
the veteran has refused to provide complete current family
financial information, and as this information cannot be obtained
without his assistance, we conclude that no further assistance is
necessary to comply with the duty to assist under 38 U.S.C.A. §
5107(a).

Some of the basic facts are not in dispute.  The overpayment in
this case was created as a result of the fact that the veteran
was paid improved pension benefits on the basis that his spouse
had no income when, in fact, his spouse was employed and
receiving income.  The RO's Committee on Waivers has held that
the veteran had contributed to the creation of the overpayment.

A review of the record shows that by rating action of February
1989, the RO granted the veteran entitlement to non-service
connected disability pension benefits effective from February
1989.  In March 1989, the veteran submitted an Improved Pension
Eligibility Verification Report (EVR) which indicated that he was
receiving Social Security benefits of $490 per month for himself
and that his spouse had no income.  He reported medical expenses
paid in 1988.  By letter dated in April 1989, the RO informed the
veteran that his claim for pension benefits had been approved and
that his monthly rate of pension was based on his reported Social
Security income of $5880.  The letter also stated that the rate
of pension is directly related to his family's income and that
any previously unreported income or change in income must be
immediately reported.  Attached to that letter was VA Form 21-
8768 which advised the veteran that he was required to promptly
report any change in his income and number of dependents.

In March 1990, the veteran submitted an EVR which indicated that
he was receiving $519 monthly in Social Security benefits and
that his spouse had no income.  He also reported that he paid
$3,374 in medical expenses between March 1989 and February 1990.
By letter dated in March 1990, the RO notified the veteran that
his pension benefits had been amended and again advised him that
all family income should be reported.  VA Form 21-8768 was
attached to that letter.  The veteran submitted an EVR in March
1991 which indicated that he was in receipt of  $547 per month in
Social Security benefits and that his wife had no income.  He
reported that he paid medical expenses of $2,883 from March 1990
to February 1991.  In March 1991, the RO informed the veteran by
letter that his pension award had been amended on the basis of
the reported income and medical expenses.  He was informed that
he was required to report all family income and VA Form 21-8768
was also attached.  In March 1992, the veteran submitted an EVR
which showed that he was receiving $567 per month in Social
Security benefits and that his wife had no income.  The veteran
also reported that he paid medical expenses of $2,612 from March
1991 to February 1992.  In March 1992, the RO informed the
veteran by letter that his pension award had been amended on the
basis of the reported income and medical expenses and, once
again, informed him that he was required to report all family
income.  That letter indicated that VA Form 21-8768 was also
attached.

In March 1992, the RO conducted an income verification match in
cooperation with the Internal Revenue Service (IRS) which showed
that the veteran's wife had earned income in 1989 of $8,821.  An
additional $895 was shown to be paid, however, the payer
identification was not available.  On VA Form 21-0159a, dated in
March 1992, the veteran's spouse certified that 1989 income
information received from the Internal Revenue Service was
correct, with a notation that the $895 was allocated tips.  Also
in March 1992, an income verification match showed that the
veteran had $1,226 earned income in 1989, in addition to his
Social Security benefits.  In March 1992, the veteran submitted a
signed VA form 21-0519(a), certifying that the $1,226 reported
income in 1989 was actually earned in the last two weeks of
December 1988 and January 1989.  He indicated that he received
only Social Security income since his award of pension benefits
in March 1989.  He asserted that he had not previously reported
his wife's income because he had been advised by a "VA agent"
that he was not required to report her income if he was not
receiving support from her.

By letter dated in April 1992, the RO notified that veteran that
his pension benefits would be terminated based on evidence
showing that his wife had income in the calendar year 1989.  The
RO determined that $8,821 was the total countable income for 1989
for the veteran's spouse.  In April 1992, the veteran submitted
as statement in which he argued that his wife's income should not
be counted for pension purposes.  He indicated that she was
employed full time.  He asserted that he paid rent and utilities
and insurance with his income and that his wife was responsible
for her expenses.  By letter dated in April 1992, the RO informed
the veteran that his pension benefits were terminated effective
in March 1989 due to excessive income.

Improved pension is a benefit payable by the VA to veterans of a
period of war because of disability.  Basic entitlement exists
if, among other things, the veteran's income is not in excess of
the applicable maximum pension rate.  If the veteran is married
and living with his spouse, pension shall be paid at a prescribed
rate.  The rate payable shall be reduced by the amount of the
veteran's annual income and the amount of annual income of family
members.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a)(3).  Effective
December 1, 1988, the maximum annual rate of improved pension for
a veteran with a spouse was $ 8,466, and effective in December 1,
1989, the maximum annual rate was $ 8,864.  38 C.F.R. § 3.23(a).
Payments of any kind from any source shall be counted as income
during the 12-month annualization period in which received unless
specifically excluded.  38 C.F.R. § 3.271(a).

A review of the record shows that the veteran was paid improved
pension benefits from March 1989 to April 1992 on the basis of
the veteran's reported Social Security income and the fact that
his wife had no income.  However, the March 1992 income
verification match, which the veteran's wife verified as
accurate, showed that the veteran's wife earned $8,821 in 1989.
The RO determined that the veteran's countable income for 1989
was $3,001 and his wife's countable income was $8,821, resulting
in total countable income for 1989 of $11,822.  In addition, as
recently as April 1992, the veteran indicated that his wife was
employed full time.  The record clearly shows that the veteran's
income was excessive for the receipt of improved pension benefits
and that the overpayment was properly created.  While the veteran
has argued that his wife's income should not be countable, the
law is clear that the wife's income is countable.  Under the
provisions of § 1521(c), the rate of pension payable is reduced
by the veteran's annual income and the amount of annual income of
"family members".  Clearly, his argument for exclusion of his
wife's income has no basis in the law.

Pursuant to 38 U.S.C.A. § 5302(c), a finding of fraud,
misrepresentation or bad faith precludes a grant of a waiver of
recovery of the overpayment.  The RO concluded that the facts in
this case do not show the presence of any of the preceding
factors and the Board agrees with that conclusion.  As a result,
the Board's decision on appeal will be limited to the
determination of whether or not waiver of recovery of an
overpayment of improved pension benefits is warranted on the
basis of equity and good conscience.

The RO has denied the veteran's claim for waiver on the basis
that recovery of the overpayment would not be against equity and
good conscience.  The RO determined that the veteran's failure to
furnish a current financial status report precluded a finding of
hardship and, therefore, the veteran's request for a waiver was
denied.  38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a).  In the
absence of the aforementioned statutory bars to waiver, the
factors to be considered in determining whether recovery of the
overpayment would violate the principles of equity and good
conscience include the following: Whether the actions of the
debtor contributed to the creation of the debt; a weighing of the
fault of the debtor against that of the VA; whether collection
would deprive the debtor of basic necessities; whether
withholding of benefits or recovery would nullify the objective
for which benefits were intended; whether failure to make
restitution would result in unfair gain to the debtor; and
whether reliance on VA benefits resulted in relinquishment of a
valuable right or the incurrence of a legal obligation.  38
C.F.R. § 1.965(a).

The record shows that the veteran was notified by the RO that the
amount of pension he was entitled to receive was based directly
on the amount of his income, including all family income.  He was
also informed that he was required to report any changes in his
income.  Despite being consistently reminded of the VA income
reporting requirements,  the veteran failed to report his wife's
income.  The March 1992 income verification match revealed that
the veteran's wife had earned $8,821 in 1989.  In March 1992, the
veteran's wife acknowledged that she had, in fact, earned the
sum.  The RO promptly suspended the payment of pension benefits
in April 1989 on the basis of the reported income.  The RO acted
timely with regard to the payment of benefits.  While the veteran
has argued that he only signed the form that was filled out by a
VA representative, there is nothing in the record to verify the
fact that a VA employee was responsible for the erroneous data
supplied to the VA on four separate occasions.  On EVR's dated in
March 1989, March 1990, March 1991, and March 1992 the veteran,
in response to specific questions, reported that his wife had $0
of wages from all employment.  By virtue of his signature on each
one of these forms, the veteran assumed responsibility for the
accuracy of the data he reported.  There is no persuasive
evidence to show fault on the part of the VA.  On the other hand,
the veteran's fault is overwhelming without any fault on the part
of the VA to offset his fault.

The Board must consider whether reliance on benefits resulted in
relinquishment of a valuable right or the incurrence of a legal
obligation.  The veteran has not contended, nor does the evidence
show, that he had relinquished a valuable right or incurred a
legal obligation in reliance on his VA benefits.  Another factor
to be considered is whether the recovery of the overpayment would
defeat the purpose for which the benefits are intended.  In this
case the purpose would not be defeated as the veteran is not
entitled to pension benefits due to excessive income.

In addition, the Board must also consider whether recovery of the
debt would result in financial hardship.  As noted above, the
veteran has failed to submitted complete income and expense
information for himself and his spouse.  In April 1992, the
veteran stated that he paid $345 per month for rent, $125 per
month for utilities and $31 per month for Medicare insurance.  He
stated that he did not pay any of his wife's expenses nor did she
pay any of his expenses.  In May 1992, the veteran submitted a
statement which indicated that all of his assets, including
furniture and a 1974 Ford automobile, were worth an estimated
$1,000.  He stated that he had no savings, cash assets or
property.  He indicated that his total income at that time,
including his wife's earning, was just over $8,000.

The most recent information concerning his assets, income and
expenses was submitted in a June 1994 statement.  The veteran did
not complete the financial status report sent to him by the RO
and he did not report his wife's income.  He indicated that his
income was $558 per month.  He stated that he paid $365 a month
for rent, $125 a month for utilities.  He stated that his wife
paid all other bills, including medicine costs.  He did not list
the amount of those expenses.  He also indicated that he owns a
1974 Ford automobile.  The Board must decide this case based on
the evidence before it, noting the veteran's refusal to submit
complete financial information.  Based on the income and expense
information of record, the Board concludes that the evidence does
not demonstrate that recovery of the debt would render him unable
to provide for life's basic necessities.  He has related a total
of $490 that he pays in expenses per month.  He has indicated
that his wife has sufficient income to pay all other monthly
expenses.  The veteran has failed to submit any evidence which
shows that he is unable to provide for the basic necessities.  It
is to be emphasized that this does not mean that some sacrifice
on the part of the veteran would not be required; however, absent
a finding that the ability to provide for life's basic
necessities would be endangered, it may not be held that
financial hardship would result.

In view of the overwhelming fault on the part of the veteran
together with the fact of his excessive income it is also
concluded that failure to repay the debt would result in unfair
gain to the veteran.

In sum, it appears that none of the elements to be considered in
determining whether recovery of the overpayment would be against
equity and good conscience support the veteran's claim for
waiver.  While this list of elements is not all inclusive, a
review of the record does not reflect any other basis upon which
a claim for waiver could be granted.

ORDER

Waiver of recovery of an overpayment of pension benefits is
denied.

C.W. SYMANSKI

          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.